Why We Can’t Trust Our Government

Committee, and promised on a Monday to declassify and present a list of others “on Wednesday”. That Wednesday came and went and we were told nothing further. The only added mention of that list of the other 48 or so plots that the NSA claims were aborted by its secret spying was that NSA decided it should stay classified.

So all we know of what has come of this massive program of capturing and storing everyone’s phone records in a Pentagon-sized complex in the Utah desert is two alleged instances of intrigue interruptus.

We already have James Clapper, the director of national intelligence, lying to Congress in March. Asked by Ron Wyden (D-Or), ”Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”, Clapper answered with an unequivocal “No sir, it does not”, as heard in this video. He would later try to wriggle free from his lying saying that this was "the least untruthful answer possible".

It follows that we are under no obligation to assume that Gen. Alexander has been telling Congress the whole truth and nothing but. In fact, in 2012, Gen. Alexander told Fox News that the NSA does not "hold data on U.S. citizens," which has now been shown to be clearly false. And just this May he told Reuters, "The great irony is we're the only ones not spying on the American people" (ibid).

So in light of this prevarication, here’s what we find puzzling: When the government aborts a terrorist plot, it has been the typical practice to trumpet its successes to the media, even going public immediately, as with the biggest of all when late one night President Obama went before the cameras to declare OBL dead. The government hasn’t been shy about wanting you to know it is keeping America safe.

Lists on the Internet attest to the public knowledge of these victories over terrorists. Examples can be found here, here and here. (Many of these were simply failed attacks, it is worth noting, not the result of surveillance.)

So what is it about Alexander’s 50 that had to be kept under wraps all this time compared to these others? If a couple of deviants in Ypsilanti were nabbed for plotting to take out a bridge in Yakima, what is compromised by touting that triumph, as long as secret detection methodology is not revealed? If our imagined conspirators were in league with some broader group, it would be no secret to the group that their partners in perfidy have been caught. So why can’t we be told of just the outlines of these exploits? Or are many the same as in these published lists, in which case why is Alexander feigning secrecy about what is already public?

Or — and this is what we are getting at — does the list that never showed up tell us there are nowhere near 50 true cases of plots foiled by the phone and Internet dragnets?

Disclosure of that would greatly weaken the NSA’s case for capturing the telephone records of all Americans, so is Alexander leaving us with only bluster?

As for the two defeated plots that the general did offer — plans to bomb the New York Stock Exchange and the city’s subway system — the latter only adds to our skepticism. Najibullah Zazi, an Afghan-American in the U.S., was ensnared when he contacted a foreign terrorist whose communications were being monitored. But James Bamford, author of several books on the NSA and government surveillance, says about the metro plot, “most of that information originally came from the British through regular police work", (see video) not the NSA’s years worth of phone calls of the entire American population.

Congress showed just how complicit and ignorant it is in all of this. We had Chairman of the House Intelligence Committee, Mike Rogers (R-Mi) fawning over Alexander, who showed up in his beribboned uniform that had Rogers gushing “thank you for your patriotism“ to the man in charge of secret spying on all of us.

His counterpart in the Senate, Dianne Feinstein (D-Ca) credited the NSA’s program with exposing the Zazi plot — wrong as we just saw — and said the FBI had him under surveillance for six months. James Clapper said they had “found backpacks with bombs”. In fact, the backpacks were empty, the bombs incomplete, and court testimony showed Zazi was tailed for only two weeks before he was arrested. These are the people charged with oversight of NSA and all the intelligence agencies. How can they have their facts so scrambled. Don’t they have any idea what is going on?

The President himself has made both revealing and questionable statements. The public was given the impression that the phone call logs — however gigantic that database — were just inert records waiting for some intercept from elsewhere to prompt the lookup of a particular phone number and trace its contacts. But just days after the leaks, Mr. Obama said, “by sifting through this so called metadata, they might identify folks who might engage in terrorism”. He would later say, “What the intelligence community is doing is looking at phone numbers and durations of calls”, not the content of the calls. But both these slip-ups tip us off that the phone data is not inert, that NSA is actively using data mining to find patterns in our phone records.

Perhaps it was just a blooper when Obama said to Charlie Rose that the FISA court is “transparent” — this entirely secret court consisting of unknown federal judges scattered about the country, any one of whom can give wiretap approval to NSA. But when he says, “No one is listening to your phone calls“ and “if, in fact, [NSA] now wants to get content … wants to start tapping that phone — it’s got to go to the FISA court with probable cause and ask for a warrant”, neither of these blanket statements is true. Nor is Clapper telling the truth when he said, "the NSA does not voyeuristically pore through U.S. citizens' e-mails. I stand by that". And in a non-response to Rose’s question, has the “FISA court turned down any request?”, Obama ducks the question with “First of all, Charlie, the number of requests are [sic] surprisingly small”. There were 1,865 requests last year, and 20,862 applications to the FISA court from 2001 through 2012. Not small numbers (and a mere 11 were rejected).

The fact is that the government has not been at all been forthcoming, even after the leaks, in admitting just how much it does eavesdrop on Americans’ phone calls and read our e-mail and does so without any court warrant. This takes come explaining:

First, phone and Internet traffic between Americans on American soil: The NSA has helped itself to all telephone call logs for years by an overbroad interpretation of Section 215 of the Patriot Act. Rushed into law a month after 9/11, and reauthorized by Congress and President Obama in 2011 for another four years, it allows the FBI’s national security branch to subpoena the “business records” of hospitals, businesses, government departments, even reader lists of libraries and bookstores. That last provision is what caused the biggest uproar when the law was enacted. NSA seems to have extended the legal right to snoop into the reading habits of a library’s “customers” to mean it therefore has the right to the entire nation’s phone records. Instead of what you would expect “business records” to refer to — a company’s financial and accounting data, purchasing records, contracts, personnel files, etc. — NSA has reached past all that to grab instead all the data about all the phone companies’ customers across the land.

It is safe to say that no Congress member envisaged the law to mean that. The abuse led Rep. James Sensenbrenner (R-Wi) to say in a letter to Attorney General Eric Holder, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

That’s one law. The other, the Foreign Intelligence Surveillance Act (FISA), originally enacted in 1978, stems from Senate investigations of Richard Nixon’s use of federal resources to spy on political and activist groups in defiance of the Fourth Amendment. It set up a secret court to issue warrants permitting intelligence agencies to wiretap when an American was found at the other end of foreign snooping.

But in 2008, Congress passed the FISA Amendments Act (FAA). It retroactively blessed President George W. Bush’s illegal surveillance of Americans’ international phone calls, uncovered by The New York Times in December 2005. His administration had decided that the law requiring obtaining court permission was an encumbrance to be ignored, given 9/11, and his government had been wiretapping without warrants or oversight for years since the attacks. The FAA also retroactively granted immunity to the telecom companies against some forty lawsuits for their improperly handing over their records to the government in those years.

The 114-page FAA bill then went on to greatly expand the government’s powers. It was rushed through the House so quickly that there was little time for legislators to read it, much less debate its complexities.

The original law allowed NSA to begin wiretapping provided it obtain a warrant within 72 hours. The 2008 revision introduces a review and appeal process that, at its fullest, could stretch to four months. If the FISA court were to deny certification of a request as a Fourth Amendment violation, which, as we have seen, it virtually never does, it could be too late, if NSA had managed to use these delaying tactics to complete illegal surveillance in advance of a negative ruling.

The President assures us that NSA’s program of international surveillance of phone, Internet and e-mail is “fully overseen”. In fact, it is not. NSA submits to the FISA Court its procedures for how it will choose subjects for international eavesdropping just once a year. With FISA’s carte blanche in hand, the government then needs no permission for whom to target, provided a reasonable case can be made that the subject is believed to be a non-American. At least that is the law, but no court oversees what NSA actually does. Nothing even requires that targets be only suspected terrorists. They could be political officials, off-shore tax haven bankers, gambling principals, whatever.

Target is the key word. Provided the target is not an American, NSA is free to sweep up any communications the targeted person or group may have had with Americans, and is free to listen to those phone calls and read the e-mail without applying for any warrant. Then there is the unanswered question of whether NSA can use its massive trove of phone call logs to see with whom those Americans have communicated in turn, perhaps expanding ever outward in a web of American connections.

Here, then, is the gaping hole in Obama’s claim that “if, in fact, it now wants to get content; [NSA’s] got to go to the FISA court with probable cause and ask for a warrant” and disinformation that “No one is listening to your phone calls”. In fact, snooping on Americans captured in this dragnet requires no warrant and there is no oversight.

Sen. Wyden has long been trying to get from NSA a count of how many Americans have been spied upon through this backdoor. Just a number. NSA has always refused, saying that to come up with a number is beyond its technology.

And if you think that spying on Americans is only incidental, listen to what former NSA Director Michael Hayden had to say to the Senate Judiciary Committee in 2006: that that certain communications “with one end in the United States" are the ones "that are most important to us'.

David Corn at Mother Jones recounts that when the Electronic Frontier Foundation (EFF) got wind of an instance in which the FISA court had cried foul, saying the government had violated the Constitution, it filed a Freedom of Information request with the Justice Department. When that was ignored, EFF filed suit. Months later Justice finally responded to say the document was classified and could not be released, so go ask the FISA court. But the FISA court had told the ACLU — also after the 86-page document — to apply to Justice. Such are the Kafkaesque evasions by which the government cloaks itself in secrecy. The suit continues.

Glenn Greenwald at The Guardian sums it up eloquently:

“The way things are supposed to work is that we're supposed to know virtually everything about what they do: that's why they're called public servants. They're supposed to know virtually nothing about what we do: that's why we're called private individuals.

This dynamic — the hallmark of a healthy and free society — has been radically reversed. Now, they know everything about what we do, and are constantly building systems to know more. Meanwhile, we know less and less about what they do, as they build walls of secrecy behind which they function. That's the imbalance that needs to come to an end. No democracy can be healthy and functional if the most consequential acts of those who wield political power are completely unknown to those to whom they are supposed to be accountable”.